LESBIAN/GAY LAW NOTES
ISSN 8755-9021 April 1996
Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St.,
NY, NY 10013, 212-431-2156, fax 431-1804; e-mail: asleonard@aol.com
or aleonard@counsel.com
Contributing Writers: Otis Damslet, Esq., New York; Steven Kolodny,
Esq., New York; Todd V. Lamb, Esq., New York; Dirk Williams, Esq.,
Boston; Robin Miller, Esq., Seattle; Julia Herd, Esq., Brooklyn; E.
Terry Giuliano, Helen G. Ullrich, Students, New York Law School;
Eva G. Anthony, David Pumo, Ross D. Levi, Students, Brooklyn Law
School.
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(C) 1996 by Lesbian & Gay Law Association of Greater New York
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GEORGIA SUPREME COURT REJECTS SODOMY LAW CHALLENGE
A majority of the Georgia Supreme Court ruled March 11 that L.
Chris Christensen's conviction for soliciting a police officer to
go to a motel to engage in oral sex did not violate the state
constitution, but only a plurality of the court joined the lead
opinion rejecting a challenge to the state's sodomy and
solicitation laws. Christensen v. State, 1996 WL 102359. Two
other justices signed the plurality opinion by Justice Hugh P.
Thompson. Two other justices concurred in the result only (one in
a two-sentence opinion rejecting the proposition that state privacy
rights would apply to a solicitation made in a public place, the
other without written opinion), and the two women on the court,
Justices Leah J. Sears-Collins and Carol W. Hunstein, filed
dissenting opinions.
The facts of the case are strikingly similar to the facts of
Commonwealth v. Wasson, 842 S.W.2d 487, in which the Kentucky
Supreme Court invalidated that state's sodomy law in 1992. Chris
Christensen was hanging out at a rest stop on Interstate 20 when he
was approached by an undercover police officer wearing a
microphone. The officer recorded Christensen in a somewhat
ambiguous conversation in which Christensen agreed to follow the
officer to a nearby motel where they might engage in oral sex.
Christensen was arrested when he drove to the motel. His defense
was that his solicitation was lawful, protected free speech,
because oral sex between consenting adults in private is protected
by the right of privacy under the Georgia constitution. The trial
court rejected this argument and a jury convicted Christensen of a
misdemeanor, for which he was sentenced to 12 months probation.
In his plurality opinion, Thompson conceded that the Georgia courts
have found a right of privacy in Art. I of the state constitution,
but asserted that when "a privacy interest is implicated, the state
must show that the legislation has a `reasonable relation to a
legitimate state purpose.'" Thompson characterized this as a
routine police power case, quoting Supreme Court Justice Byron
White's opinion in Bowers v. Hardwick (in which the Supreme Court
upheld this sodomy statute against a federal privacy challenge) to
the effect that morality may provide the basis for such
legislation. "We hold that the proscription against sodomy is a
legitimate and valid exercise of state police power in furtherance
of the moral welfare of the public," stated Thompson with no
further explanation or discussion of the point.
Turning to the free speech argument, Thompson cited authority for
the proposition that speech advocating violation of the law is not
protected. Sodomy is a felony in Georgia, noted Thompson, and
"Reasonable prohibitions against soliciting unlawful acts do not
violate free speech rights."
In a final paragraph of this extremely terse opinion, Thompson
acknowledged that other states had "decriminalized consensual
sodomy," but asserted that most such reform had been achieved
legislatively. "The right to determine what is harmful to health
and morals or what is criminal to the public welfare belongs to the
people through their elected representatives. We decline to usurp
what is the power of the legislature."
This drew a lengthy, impassioned dissent from Justice Sears-
Collins, who has emerged as an eloquent voice for gay rights on the
Georgia court. (See, e.g., City of Atlanta v. McKinney, 454 S.E.2d
517 (Ga. 1995); Tedder v. State, 463 S.E.2d 697 (Ga. 1995); Van
Dyke v. Van Dyke, 425 S.E.2d 853 (Ga. 1993).) Accusing the court
of evaluating "the guaranteed rights of privacy and free speech
under incorrect constitutional standards," she characterized the
plurality decision as marking "a corrosion of rights guaranteed to
the citizens of this State" and called the "majority opinion"
"pathetic and disgraceful," asserting that it "has tragic
implications for the constitutional rights of the citizens of this
State."
Strong words, indeed, but Justice Sears-Collins goes far to
vindicate them. In her privacy analysis, she cites numerous
Georgia precedents for the proposition that when individual privacy
rights are implicated under a state law, the appropriate standard
of judicial review is strict scrutiny, not a rationality test. She
argues that Georgia precedents strongly support the Millian
proposition that private conduct that does not harm another person
is beyond the penal reach of the state. "Insofar as Georgia's
citizens keep their conduct to themselves and do not interfere with
the rights of others, the State has no legitimate concern," she
wrote. She characterized as "no freedom at all" the freedom that
can only be exercised if consistent with majority moral views.
"Rather, it is a mark of despotism, and a step backward toward the
majoritarian tyranny that our founders sought to escape." Sears-
Collins noted the accelerating trend of decriminalization, most
recently by judicial decision, in a majority of states to
illustrate that striking down the law would place Georgia's courts
in the mainstream of contemporary jurisprudence, and accused the
court of ignoring these precedents. She follows this introduction
with a lengthy refutation of the various justifications proffered
by the state for the sodomy law.
Turning to the free speech point, Justice Sears-Collins again
accuses the court of using the wrong test. First she develops the
theme that, as the state itself conceded before the U.S. Supreme
Court that consensual sodomy between married persons would be
constitutionally protected, the solicitation and sodomy statutes
are clearly overbroad since on their face they would proscribe
either soliciting or engaging in such conduct. She also asserted
that the sort of "clear and present danger" of inciting lawless
conduct analysis used by the court in this case was totally
inappropriate to the instant case. "The clear and present danger
doctrine has never been applied to situations where a verbal
solicitation is punishable as a mere misdemeanor, nor does the
majority cite any precedent for that proposition," she argued,
concluding that the decision as a whole undermines the social
contract between the state and its citizens.
Justice Hunstein's dissent, though less impassioned, is not less
pointed in criticizing the majority of the court. "I cannot agree
with the majority's conclusion that the `moral welfare of the
public' requires this Court to uphold a statute that criminalizes
all private, consensual sodomy," she wrote, pointing out that the
law as it stands is invalid, apart from the privacy argument,
"because criminal statues like it, which are defined based upon the
body parts involved during private consensual sex, which are
ignored and ridiculed by the populace, and which are enforced with
discriminatory selectivity, can only breed contempt and foster
disdain and disrespect for the law, the State, and the law
enforcement community."
Christensen was represented in the case by Jane E. Fahey, a partner
at Bondurant, Mixson & Elmore, with amicus support from the
Stonewall Bar Association of Georgia and Lambda Legal Defense &
Education Fund. A.S.L.
CONNECTICUT SUPREME COURT BARS MILITARY RECRUITERS FROM LAW SCHOOL
In an opinion made public March 19 but not officially released
until March 26, the Connecticut Supreme Court held that the
University of Connecticut Law School must bar military recruiters
from the placement office at its Law School. The ruling came on
the University's appeal of an injunction issued by the Superior
Court in Hartford at the instigation of a gay student group at the
law school. Gay and Lesbian Law Students Association v. Board of
Trustees, University of Connecticut, No. 15191. The dispute
between the justices in the 3-2 ruling was mainly over the
interpretation of Conn. Stats. sec. 10a-149a, a law concerning
military access to educational institutions in the state.
The case began in 1992 when the University administration turned
down a request by Gay and Lesbian Law Students Association to
enforce the school's non-discrimination policy by barring military
recruiters. The Students premised their request both on the
school's non-discrimination policy and a recently-enacted
Connecticut statute banning sexual orientation discrimination. The
school's refusal was premised on the military access law, which
provides: "Notwithstanding any other provision of law to the
contrary, each constituent unit of the state system of higher
education and any private college or university which receives
state funds shall. . . provide the same directory information and
on-campus recruiting opportunities to representatives of the armed
forces of the United States of America and state armed services as
are offered to nonmilitary recruiters or commercial concerns." The
school interpreted this to require military access despite the non-
discrimination policy and law.
The Student Association filed suit, claiming violations of both
statutes and breach of contract, arguing that the School's non-
discrimination policy was part of an enforceable contract with each
student.
In her opinion for the court, Justice Joette Katz preliminarily
disposed of a variety of procedural and jurisdictional arguments by
the defendants before proceeding to the main point: that the two
statutes could be harmonized in a way that supported the issuance
of injunctive relief against the School administration. Katz
rejected the state's argument that the Student Association had
suffered no harm by military recruitment and thus was not entitled
to any judicial relief. Katz observed that the placement office
was an important service for students at the school, and that
allowance of discriminatory employers to use the office would
impose a distinct harm on the lesbian or gay students. As the
parties had stipulated that the armed forces discriminate on the
basis of sexual orientation, that was taken as a given. The
parties also agreed that military recruiters were the only
recruiters who discriminated on the basis of sexual orientation
whom the school desired to exempt from its policy; other
discriminatory employers were barred from the placement office.
Turning to the access statute, Justice Katz adopted an
interpretation similar to that embraced by the New York Court of
Appeals in Lloyd v. Grella, 83 N.Y.2d 537, 634 N.E.2d 171, 611
N.Y.S.2d 799 (1994), which held that such an equal access statute
merely provided that military recruiters be subject to the same
access rules as other employers. Katz reviewed the legislative
history of the Connecticut statute and concluded that legislators
did not intend to put the military in a special status, but rather
to forbid schools from imposing special rules for the military.
Since the parties agreed that the placement office was openly only
to non-discriminatory employers and that the military pursues a
discriminatory policy, the result clearly followed that the
military must be barred. Katz's opinion, joined by Justices Berdon
and Norcott, made the point that the state had by enacting a gay
rights law declared a "strong public policy" of protecting gay
people from discrimination, so the military access law should be
strictly construed to achieve that policy.
Justice Berdon filed a concurring opinion focusing exclusively, and
at considerable length, on refuting the dissenters' arguments about
the language and legislative history of the access statute. The
dissent by Justice Callahan, joined by Justice Palmer, seized upon
the opening phrase of the access law, "Notwithstanding any other
provision of law to the contrary. . .," and argued that this
clearly meant that the sexual orientation discrimination law was
not to be applied to the issue of military access. Further,
Callahan noted that the access law (which predated the amendment
adding sexual orientation to the discrimination law) was enacted in
response to the action of several schools in the state barring
military recruiters in protest of the exclusion of gays from
military service, providing the basis to argue that the legislators
would not have intended to compel the schools of the state to bar
military recruiters, much less even to allow such bans to be
adopted voluntarily by the schools.
Curiously, none of the opinions in the case discussed supremacy or
preemption principles, which had been construed by a federal court
years ago to block the city of Philadelphia from compelling Temple
University Law School to bar military recruiters. Neither did any
of the opinions mention federal laws that debar schools that
exclude military recruiters from receiving any money appropriated
under Defense Department appropriations bills. All of the opinions
focused narrowly on construction of the state military access law.
The Gay and Lesbian Law Students Association was represented by
Philip D. Tegeler and ACLU staff attorney Marc Elovitz, with
briefing assistance from Martha Stone and ACLU staff attorneys Ruth
Harlow and Matt Coles. A.S.L.
LESBIAN/GAY LEGAL NEWS
California Supreme Court Clarifies Standards for Selective
Prosecution Defense
In Baluyut v. Superior Court of Santa Clara County, 50 Cal.
Rptr.2d 101, 911 P.2d 1, 1996 WL 90603 (March 4), the California
Supreme Court unanimously held that, in order to establish a claim
of selective prosecution, a criminal defendant was not required to
show that the authorities acted with the specific intent to punish
the defendant for membership in a specified class. The defendants
in this case were represented by Bruce Nickerson, with Sean Selegue
appearing as amicus curiae.
The defendants had been charged with disorderly conduct under a
statute defining such conduct as including the solicitation of
another to engage in lewd conduct in a public place. In each case,
the charge arose from an encounter between a male police decoy and
the male defendant outside a particular adult bookstore. The
police officer used small talk to initiate a conversation with the
defendant. Eventually, the officer would accompany the defendant
to the officer's or the defendant's automobile, at which point the
defendant would be arrested.
The defendants claimed that they were victims of selective
prosecution by the city's police force, which, the defendants
believed, was focusing solely on arresting gay men outside the
bookstore. Records from the city's police force for the two years
prior to the defendants' arrest apparently substantiated this
allegation, as the trial court concluded that the police operation
was designed to identify gay men and lead to their arrest.
Although the defendants' prosecutions had been terminated by the
trial court in the interests of justice, the supreme court
nevertheless granted review, the court holding that the question
presented -- whether an intent to punish a criminal defendant was
an element of a selective enforcement claim -- involved a matter of
continuing public interest and was likely to recur.
The court observed that a selective prosecution claim raised a
constitutional objection rather than a "defense" in the ordinary
usage of the latter term. The constitutional defect, the court
observed, was the denial of equal protection to members of the
class targeted for prosecution. Canvassing its previous opinions,
the court found a consistent articulation of the elements of a
selective prosecution claim: The defendant was required to
establish that the authorities deliberately singled the defendant
out for a prosecution that would not have occurred in the absence
of this discriminatory intent. Confusion arose, though, because a
California court of appeal decision, People v. Smith, 155 Cal.
App.3d 1103 (1984), had articulated an "intent to punish" standard
and appeared to view it as an additional requirement.
The court found no basis for the addition of this gloss to existing
jurisprudence. While previous decisions had held that mere
inconsistent enforcement of the law failed to rise to the level of
selective enforcement, this did not imply that a specific intent to
punish the defendant was required. The intent that was required,
the court stressed, was merely the intent to single out a class, or
a member of a class, for a prosecution that otherwise would not
have occurred. The court also emphasized that, inasmuch as a
selective enforcement claim was of constitutional dimension, a
state judiciary was not permitted to define the claim more
restrictively than had the United States Supreme Court, and that
court, in decisions such as Wayte v. United States, 470 U.S. 598,
had never described an intent to punish as an element of the claim.
And, while Wayte had held that mere discriminatory effect was
insufficient to demonstrate selective prosecution, the court
interpreted this to mean only that discriminatory intent -- not an
intent to punish -- was necessary to establish the claim.
It is important to observe that the court in this decision
expressly limited its discussion and holding to the narrow issue of
whether an intent to punish was an element of a selective
enforcement claim. Accordingly, the court declined to address
whether the defendants had actually proven selective enforcement.
R.M.
Georgia Appeals Court Lifts Restriction on Gay Dad's Visitation
Rights
In In re R.E.W., 1996 WL 99709 (Ga. App., March 7, the Georgia
Court of Appeals ordered the Juvenile Court to award the gay father
of an 8-year-old girl unsupervised weekend, holiday, and summer
visitation. Five years after the parents divorced, the father
sought to replace his supervised visitations with his daughter for
unsupervised ones. The Court of Appeals rejected the Juvenile
Court's determination that the father was engaged in an
"immoral homosexual relationship" and could not be trusted to keep
the nature of his relationship from his daughter.
The Juvenile Court originally found that the father was
untrustworthy because, prior to the divorce, his wife had
discovered him with another man in their bedroom. But the record
showed that the father has now been in a four-year-old monogamous
relationship; that he did not believe it would be in his daughter's
best interests to reveal the nature of his current relationship;
that he and his partner had separate bedrooms; and that even the
father's own mother did not know the nature of his current
relationship even though she had visited his home several times.
The record also showed that the father had maintained a good
relationship with his daughter.
The Court of Appeals held that the question in visitation matters
was "not the sexual mores or behavior of the parent, but whether
the child will somehow be harmed by the conduct of the parent."
The court emphasized that it was the child's best interests that
determined custody issues and not "the sexual preferences of the
parent. . . . [P]arents, married or not, are individual human
beings each with his or her own particular virtues and vices."
Courts should look not at the faults of the parents, but the needs
of the children. The court here agreed with the father that
prolonging the supervised visits could begin to harm his daughter
and she would begin to question their restricted relationship and
learn the truth eventually, so supervised visitation was not
necessary or prudent. M.S.R.
Conservative District Judge Zaps Military Policy
In 1995, the U.S. District Court for the Eastern District Virginia
ruled in Thomasson v. Perry, 895 F.Supp. 820, that the "Don't Ask,
Don't Tell" policy did not violate a gay soldier's First Amendment
right of free speech. Now, in Thorne v. U.S. Dept. of Defense,
1996 WL 96924 (March 4), Judge Thomas S. Ellis III (a Reagan
appointee), writing for the same court, has all but declared the
policy unconstitutional.
It is a story that is all too familiar. Lieutenant Tracy Thorne
graduated from the Aviation Officer Candidate School at the top of
his class. After earning the title of Naval Flight Officer, he
trained as a bombardier/navigator and ultimately joined Attack
Squadron VA-65 at the Naval Air Station in Oceana, Virginia, all
the while earning the notice and praise of his commanding officers.
On May 19, 1992, Thorne appeared on the ABC television network
program "Nightline" and publicly announced his homosexuality.
Thorne immediately received notification of discharge proceedings.
While the proceedings were pending the Secretary of Defense began
to review the policy concerning gays and lesbians in the military.
Thorne's discharge was temporarily suspended awaiting the new
policy.
President Clinton signed the "Don't Ask, Don't Tell" policy into
law on November 30, 1993, and Thorne's case was reconsidered under
the new regulations. Under the policy, a service member would be
discharged for stating that he or she is homosexual, unless there
are further findings demonstrating that the member is not a person
who "engages in, attempts to engage in, has a propensity to engage
in, or intends to engage in" homosexual acts. The Board of Inquiry
found that Thorne's statement that he was a homosexual created a
rebuttable presumption that he had a propensity to engage in
homosexual conduct. The Board also found that he failed to rebut
the presumption. Thorne was discharged on March 9, 1995. He
immediately filed this suit claiming that the policy violates the
Free Speech Clause of the First Amendment.
Judge Ellis proceeded with a two-step analysis, first determining
that the policy appeared to be a restriction on speech, and as
such, implicated the First Amendment, and second, that the
appropriate degree of judicial scrutiny for a content-based
restriction on speech, in the context of the military, is a
moderated version of strict scrutiny. Ellis concluded that if the
record, as supplemented by the parties, still showed that the
policy in its manner of implementation is a content-based
restriction on speech, then it would fail heightened scrutiny and
violate the First Amendment.
The government argued that the "Don't Ask Don't Tell" plan is not
directed at speech and that the statement "I am gay" merely creates
a rebuttable presumption that the person engages in or has a
propensity to engage in prohibited conduct. Thorne's position was
that the presumption was irrebuttable short of recantation;
therefore, the policy served to dismiss service members who say
they are gay. The court agreed that on its face, the presumption
seemed irrebuttable. Judge Ellis pointed out that "propensity," as
defined by the Oxford English Dictionary, means "a disposition or
inclination to some action." So it seems that the only way a
service member who states "I am gay" can rebut the presumption is
to demonstrate to the fact finder that he or she is not gay.
The government, however, defines propensity as a "likelihood." So
theoretically, the presumption is rebuttable by convincing the fact
finder that although the member is a homosexual, it is not likely
that he or she will engage in homosexual acts. But the government
was not able to produce any hard evidence that anyone has, in
practice, successfully rebutted the presumption short of
recantation. Indeed, in light of cases such as Richenberg v.
Perry, 73 F.3d 172( 8th Cir. 1995) (unchallenged sworn statement by
Richenberg that he did not and would not engage in homosexual acts
not sufficient to rebut presumption), it seems that recantation is
the only way to rebut the presumption. Finding the record
inadequate to reach a conclusion on this issue, the court directed
the parties to supplement the record with facts on which the court
could evaluate whether in practice the presumption was rebuttable
without a recantation.
In any case, the government argued that even if "Don't Ask, Don't
Tell" is determined to be a restriction on speech rather that
conduct, it would still pass First Amendment muster. The court did
not agree. Ordinarily, regulated content-based speech would be
subject to strict judicial scrutiny, meaning that the government
would have the burden of showing the policy is necessary to achieve
a compelling interest. However, since military regulations are
afforded greater deference, strict scrutiny could not be applied.
The court also dismissed an intermediate scrutiny test which is
applied to content-neutral time, place, and manner restrictions, a
category into which "Don't Ask, Don't Tell" does not fit.
Accordingly the court settled on a deferential version of strict
scrutiny that would require the government to show that the
military restriction must substantially further an important
governmental interest in order to pass First Amendment muster.
"Don't Ask, Don't Tell" fails this test because the government
could not show that dismissing service members who "tell"
substantially furthers the goals of the policy.
The government offered "unit cohesion" as the interest to be served
by the policy, unarguably an "important" interest. Also identified
were three aspects of that interest: (1) preserving privacy among
service members, (2) minimizing sexual tension, and (3) preventing
unit polarization.
First, the government argued that a service member's privacy would
be invaded if forced to live and shower with another member who may
find him or her sexually attractive. The court pointed out that
while this may be an argument for an outright ban on gays in the
military, it does not explain how a soldier's privacy is protected
by dismissing a service member who states "I am Gay" while allowing
gays who do not make this statement to remain. In addition, "Don't
Ask, Don't Tell" serves to accomplish exactly what the government
says it wants to prevent by assuring that gays who do not make the
"I am gay" statement will remain in service.
Second, the government argued that throwing openly gay service
members in with heterosexual personnel would create destructive
sexual tension. Yet, since the Directive explicitly states that
the rebuttable presumption is not triggered by "associational
activity such as going to a gay bar, possessing or reading
homosexual publications. . . or marching in a gay rights rally in
civilian clothes," it is difficult to see how sexual tension is
minimized by banning members who state "I am gay," while allowing
other gays to serve.
Finally, the government argued that allowing openly gay members to
serve would polarize the unit, with those in favor of a ban on gays
in the military on one side, and those not in favor on the other
side. This, of course, fails for the same reason as the others.
The policy allows one who advocates gay rights, marches in gay
parades, and goes to gay bars, to serve in the military, as long as
he or she does not make the statement "I am gay." Preventing unit
polarization is not substantially furthered by dismissing only
those that make that statement since the gays permitted to remain
could cause the same degree of debate or unrest.
In an interesting footnote, Judge Ellis noted that polarization as
described by the government could result from many issues such as
race, religion, or ethnicity, and he contemplated whether such an
argument would be tolerated in support of a "Don't Ask, Don't Tell"
policy for Jews or Muslims. That it would not is clear, as our
institutional leaders would not permit it. Judge Ellis added that
"If the leaders of those institutions understood prejudice against
homosexuals as a fiction born of ideology, then that view would
eventually permeate society and eliminate any potential
polarization stemming from the service of openly gay people in the
military, just as leadership has helped. . . to ensure that
attitudes among service members about religion and race tend to
tolerance." E.T.G.
Navy Can Discharge Member Who Say's He's Gay and Refuses to Rebut
the Presumption That He Will Engage in Homosexual Conduct
U.S. District Judge Thomas Zilly ruled March 7 against Lt. Richard
P. Watson's challenge to the "Don't Ask, Don't Tell" military
policy. Watson v. Perry, 1996 WL 115473 (W.D.Wash.). Watson, who
first enlisted in the Navy in 1981 and was singled out early for
officer potential and sent for special training, spent several
years on active duty and in 1992 became a member of the ROTC
faculty at Oregon State University. On October 28, 1994, Watson
sent his commanding officer a letter in which he stated: "I have a
homosexual orientation. I do not intend to rebut the presumption."
Defense Department regulations provide that any service member who
says that he is "homosexual" is presumed to have a propensity to
engage in homosexual conduct, and is thus to be processed for
discharge unless he can rebut the presumption. Watson later
supplemented this statement by indicating that he had not and would
not engage in homosexual conduct with any military student or
service member, had not and would not engage in such conduct while
on military duty or on any military installation, and that he had
no propensity to do any of these specified things. From these
statements, Naval authorities drew the inference that Watson had or
would engage in homosexual conduct off-duty and off-base with non-
military personnel. Thus, Watson was processed for discharge. He
obtained temporary injunctive relief from Judge Zilly pending the
outcome of his challenge to the policy.
Stating that his "decision to grant the Government's motion for
summary judgment should not be interpreted as an endorsement" of
the military policy "or the way that it has been applied in
general," Judge Zilly concluded that Watson's statements made it
impossible to rule in his favor in this case. The 9th Circuit has
already held in Meinhold v. U.S. Department of Defense, 34 F.3d
1469 (1994), that the military may prohibit its members from
engaging in homosexual conduct. So long as the action against
Watson is taken because of the reasonable negative inference that
he has or will engage in such conduct (by stating that he won't
rebut the presumption and that he does not have a propensity to
engage in homosexual conduct with military members, on duty, or on
military installations) rather than solely on the basis of his
homosexual, Zilly found, Watson was not in a position to mount a
facial challenge to the policy. In any event, a facial challenge
would require a finding that there was no constitutional way in
which the policy could be applied, and Zilly found that the policy
could constitutionally be applied to somebody such as Watson,
rejecting equal protection, due process, and first amendment
arguments.
Zilly's opinion engages in rather intricate reasoning to reach his
conclusions. It is clear that the judge doesn't like the policy,
but it is also clear that he wrote this opinion with one eye on the
9th Circuit, which is itself rather sharply conflicted about the
whole issue of military services by gay people.
The 9th Circuit heard oral argument in another military case
presenting similar issues, Philips v. Perry, on March 7. ACLU Gay
& Lesbian Rights Director Matt Coles argued to the court that even
though Philips was not maintaining that he was or would remain
celibate, nonetheless the military policy violated his right to
equal protection of the laws because he was forbidden to engage in
conduct off-duty that was not forbidden to heterosexual service
members, and there was no rational basis for applying the double
standard. (It is noteworthy that a heterosexual service member who
engages in homosexual conduct may be retained in the service if he
can demonstrate that his conduct does not reflect his true sexual
orientation or sexual propensities.) The district court decision
ruling against Philips can be found at 883 F.Supp. 539 (W.D.Wash.
March 17, 1995). Seattle Post-Intelligencer, March 8. A.S.L.
11th Circuit Vacates Shahar Decision for En Banc Review
Late in 1995, a three-judge panel of the 11th Circuit ruled that
Georgia Attorney General Michael Bowers may have violated the
constitutional rights of Robin Shahar, a lesbian attorney, when
Bowers terminated Shahar's employment with the Georgia Law
Department after learning that Shahar and her partner were having
a same-sex marriage ceremony. Shahar v. Bowers, 70 F.3d 1218 (11th
Cir. 1995). The panel ruled that unless Bowers could come up with
a compelling reason for withdrawing Shahar's job, his action would
violate Shahar's right of intimate association under the federal
constitution. Bowers petitioned for rehearing en banc, which has
now been granted by the 11th Circuit, which results in vacating the
original opinion. The entire appeal court of eleven judges will
hear the argument, according to a March 12 report in the Atlanta
Journal-Constitution. A.S.L.
4th Circuit Panel Dismisses Same-Sex Harassment Claim on Ground
That Conduct Was Insufficiently Pervasive or Severe to Violate
Title VII
In January, the 4th Circuit ruled in McWilliams v. Fairfax County
Board of Supervisors, 72 F.3d 1191, that Title VII did not apply to
hostile environment claims "where both the alleged harassers and
the victim are heterosexuals of the same sex." On March 5, another
4th Circuit panel dismissed a same-sex harassment claim in Hopkins
v. Baltimore Gas & Electric Co., 1996 WL 93733, but despite
unanimity about the dismissal, two members of the panel refused to
sign on to part of Judge Niemeyer's opinion discussing the
theoretical issue of whether Title VII would ever apply in a same-
sex harassment case. Ultimately, Niemeyer grounded dismissal on a
finding that the conduct complained about by the plaintiff was
neither so pervasive nor so severe as to constitute a hostile
environment within the meaning of Title VII. Concurring Judges
Wilkinson and Hamilton argued that as a result of this finding,
there was no need to write about the theoretical basis for a same-
sex harassment action, especially when the 4th Circuit had recently
articulated a position on the issue (with which Judge Niemeyer
apparently disagrees).
In the disputed portion of the opinion, Niemeyer rejects the
reasoning of the 5th Circuit in Garcia v. Elf Atochem North
America, 28 F.3d 446 (1994), holding that same-sex harassment is
never actionable under Title VII. Finding the reasoning of that
case non-persuasive, Niemeyer opined that "only the sex of the
employee [who is claiming harassment] is relevant in determining
whether Title VII is implicated." The sex of the alleged harasser
is irrelevant; the issue is whether the plaintiff was being
harassed because of his gender. Niemeyer argues that under the
Supreme Court's Meritor decision, which first recognized the
hostile environment theory under Title VII, "the Supreme Court
concluded that sexual harassment, which is sufficiently severe and
pervasive to alter the conditions of employment, constitutes
discrimination of the type prohibited by Title VII. I therefore
conclude that sexual harassment of a male employee, whether by
another male or by a female, may be actionable under Title VII if
the basis for the harassment is because the employee is a man."
The more difficult question, says Niemeyer, is what proof to
require of a plaintiff in such a case. "The principal way in which
this burden may be met is with proof that the harasser acted out of
sexual attraction to the employee," explained Niemeyer:
"I recognize that conduct directed toward an employee of the same
gender as the harasser can have sexual content or innuendo and,
indeed, may be offensive. But unless such harassment is directed
toward an employee `because of' his or her status as a man or a
woman, it does not implicate Title VII. I reject the notion that
when a man, for example, uses sexually oriented gestures and
language, or engages in sexually perverse activity to harass
another man, Title VII automatically imposes liability. Such
conduct may constitute a common law tort, but, without more, it
does not amount to discrimination against the employee because he
is a man."
Refusing to sign on to this portion of Niemeyer's opinion, Judge
Wilkinson argued that it was "inadvisable" because "unnecessary to
the resolution of this case." Claiming sanctuary in judicial
restraint, Wilkinson argued: "If Title VII is to be extended to
cover a whole new generation of same sex harassment claims, it is
far better that it be accomplished by legislative action than by
judicial fiat. The last place to reach out to recognize such
claims is a case whose lack of merit is, in all events, apparent."
Perhaps it is noteworthy that the facts alleged by Hopkins sound
like he was being subjected to sexually suggestive conduct by a gay
supervisor, but alternative interpretations of the facts are also
possible. A.S.L.
Same-Sex Harassment Actionable in Northern District of Illinois
Continuing a nationwide trend, and following a similar decision by
Judge Leinenweber of the same court in January (see LGLN for
February, at 20), Judge Shadur of the U.S. District Court for the
Northern District of Illinois has ruled that same-sex harassment is
actionable under Title VII. Kaplan v. Dacomed Corp., 1996 WL 89148
(Feb. 27). Plaintiff Lisa Kaplan accused defendants Dacomed and
Marsha Ramsey of "offensive sex-related conduct (not in the nature
of sexual advances, however)," according to Shadur's opinion.
Dacomed argued that Title VII does not apply to same-sex
harassment. In a brief memorandum, Shadur acknowledged the
still-developing case law on this issue, beginning with Goluszek v.
H.P. Smith, 697 F.Supp. 1452 (N.D.Ill. 1988), in which Judge
Williams dismissed a same-sex harassment claim on the theory that
Congress did not intend use of Title VII to deal with same-sex
issues, and noting that the Supreme Court has yet to rule on the
issue. Reading support for Kaplan's position implied between the
lines of Baskerville v. Culligan Int'l Co., 50 F.3d 4128 (7th Cir.
1995), Shadur denied Dacomed's motion to dismiss. O.R.D.
Federal Court Temporarily Blocks Part of Telecommunications Act
The U.S. District Court for the Eastern District of Pennsylvania
granted a temporary restraining order (TRO) which will prevent the
government from enforcing one of the "indecency" sections of the
recently-passed Federal Telecommunications Act of 1996. In ACLU v.
Reno, 1996 WL 65464 (E.D.Pa., Feb. 15), Judge Buckwalter granted
the TRO against part of the section known as the Communications
Decency Act of 1996 (CDA), which makes it illegal to knowingly
make, create, or solicit, and then initiate the transmission of an
obscene or indecent communication by means of a telecommunications
device in interstate or foreign communications to a person under 18
years of age.
The judge agreed that Congress has a compelling interest in
protecting the physical and psychological well-being of minors, and
that the plaintiffs failed to prove the Congress failed to narrowly
tailor the CDA. He wrote, however, "that the plaintiffs have
raised serious, substantial, difficult and doubtful questions . .
. that the CDA is unconstitutionally vague in the use of its
undefined term, `indecent,'" pointing out that the U.S. Supreme
Court has never actually defined the word "indecent." Because a
criminal felony prosecution would turn on that definition of the
word, the section's vagueness would make its enforcement a
violation of due process. "It is a most compelling constitutional
reason to require of a law that it reasonably informs a person of
what conduct is prohibited, especially when violation of the law
may result in fines, imprisonment, or both."
The ACLU also petitioned for a TRO for the section that provides
for fines or imprisonment for a person who knowingly uses an
interactive computer service to display in a manner available to
persons under 18 years of age any communication that, in context,
depicts or describes, in terms patently offensive as measured by
contemporary community standards, sexual or excretory activities or
organs. The court denied that motion, since it failed to find the
patently offensive provision unconstitutionally vague. R.D.L.
Ohio Supreme Court Refuses to Review Dismissal of Wrongful
Discharge Claim by Gay Lawyer
Scott Greenwood, discharged as an associate by the law firm of
Taft, Stettinius & Hollister in Cincinnati, claims that his
discharge was due to his activism in connection with the enactment
and subsequent repeal of the Cincinnati gay rights ordinance.
Claiming that discharging him because he is gay and politically
active in this manner violates the public policy of Ohio, Greenwood
filed suit alleging wrongful discharge in violation of public
policy. The trial court granted the law firm's motion to dismiss,
and was sustained by the court of appeals. (Another count of
Greenwood's complaint, alleging breach of privacy, still remains
for trial.) On March 6, the Ohio Supreme Court refused to review
the dismissal by a 4-3 vote. Greenwood v. Taft, Stettinius &
Hollister, 1996 WL 106336.
In a brief written dissent, Justice Paul Pfeifer, joined by Chief
Justice Thomas Moyer, contended that the case "involves a matter of
great public or general interest, concerns an area which this court
has not recently addressed, and presents novel legal issues."
Pfeifer said that the following "novel questions" deserved a
response from the court: "Can an employer in Ohio fire an employee
based upon his sexual preference? Does the Code of Professional
Responsibility enunciate a public policy that lawyers should not be
fired because of the clients they choose to represent? Does the
recently adopted Disciplinary Rule prohibiting discrimination based
on sexual orientation (DR 1-102[B]) provide the requisite public
policy?" Justice Douglas also dissented without opinion.
Cincinnati attorney Alphonse A. Gerhardstein represented Greenwood
on the appeal. The court of appeals decision is unofficially
reported at 64 USLW 2224, 10 Ind. Emp. Rgts. Cases 1744, 1995 WL
540221 (1995). A.S.L.
NY Court Imposes Constructive Trust in Property Dispute Involving
Same-Sex Couple
In Hanselman v. Shepardson, 1996 WL 99377 (U.S. Dist. Ct.,
S.D.N.Y., March 7), District Judge John S. Martin denied in part
the defendant's motion for summary judgment, ruling that a genuine
issue of fact existed which could help resolve the question whether
a constructive trust should be imposed on properties acquired by a
male couple during their 15-year relationship.
In 1993, Ran Hanselman and Charles Shepardson ended their
relationship, during the course of which the couple acquired two
properties, one in New Jersey and the other in Florida. Hanselman
alone purchased the New Jersey property, a lot upon which the
couple built their house. Shepardson operated a landscaping
business from the house, the profits of which were placed in the
couple's joint bank account. In 1987, Hanselman put Shepardson's
name on the deed. In that same year, the couple purchased the
Florida property. Hanselman claims he bought the property with his
own funds, but Shepardson asserts it was purchased out of funds
from their joint bank account. Both parties' names are on the deed
to the Florida property. Hanselman claimed that he included
Shepardson's name on both deeds to ensure that if Hanselman died,
Shepardson would have "a place to live and financial security".
Hanselman alleged that Shepardson agreed to surrender claim to the
properties if the relationship ended or if Shepardson became
financially independent. Based on these oral promises, Hanselman
asserted that Shepardson was not entitled to an interest in either
property and thus the court should impose a constructive trust on
the properties.
In upholding this claim, the court explained, "a constructive trust
arises when a person holding title to the property is under an
equitable duty to convey it to another", and would be "unjustly
enriched" if such person held onto the property. The court
enumerated instances where constructive trusts are usually imposed,
including fraud, duress, undue influence, mistake and transfers
made in anticipation of death. The court noted, however, that as
a court of equity it is not bound by any rigid formula and that
where unjust enrichment may be found, the imposition of a
constructive trust may be appropriate. Here, the court found that
there are factual issues which need "to be resolved to determine
whether a constructive trust should be imposed." The court
reasoned that due to the length and nature of their relationship,
the parties "likely placed great trust and confidence in one
another," and that the defendant may have abused that trust by not
reconveying the land back to the plaintiff after the relationship
ended. The court also could not decide, on a motion for summary
judgment, whether the defendant would be unjustly enriched if he
retained the property.
Also, the court noted, even if a constructive trust would not be
appropriate under these facts, Hanselman's claim should be upheld
since sufficient issues of fact were raised as to whether
Shepardson should have to repay Hanselmen $92,000, which Hanselman
allegedly gave to Shepardson at the end of their relationship in
exchange for Shepardson's conveyance of his share of the properties
back to him.
As to Hanselman's other claims, alleging fraud, negligence and
breach of contract, in connection with Shepardson's alleged failure
to perform various domestic services, the court found that
Hanselman filed to assert sufficient facts to override Shepardson's
motion for summary judgment. E.G.A.
Kansas Supreme Court Affirms Conviction for Murder of Gay Man
In State v. Collier, 1996 WL 99818 (March 8), the Kansas Supreme
Court affirmed the conviction of Jeffrey Collier for the first-
degree murder and aggravated robbery of Michael Hendrix, a gay man.
However, the court found that the state failed to comply with a
statutory notice requirement concerning the sentence the
prosecution was seeking, so it vacated the 40 hard years sentence
for reconsideration at the trial level.
Collier and his gay partner, Benny Watson, went to Oak Park in
Wichita, a cruising area used by gay men, looking for somebody to
rob. They found Hendrix. Hendrix took Collier home with him under
the pretext of having sex, but Collier strangled Hendrix and stole
a variety of items from his home. At trial, Watson, who has AIDS,
testified that they were specifically looking for a gay man to rob,
and that after the fact Collier had confessed to the robbery.
However, as part of the defense it appears that Collier sought to
depict the situation as an S & M scene that had accidentally gone
bad. The prosecutor's theory of the case, propounded to the jury
during closing arguments, was that Collier sought to rob a gay man
picked up from a cruising place in the park because he expected
such a robbery victim would not go to the police.
On appeal, Collier raised a variety of objections to evidentiary
rulings, all of which were rejected unanimously by the court. One
objection was to testimony by a gay male acquaintance of the victim
that Hendrix was not involved in S & M. The court observed that a
prior witness, under questioning by Collier's attorney, had been
asked whether Watson had told him that the victim was "into S & M,"
so Collier's attorney had raised the issue first. Collier also
sought to make something out of Watson's testimony that he had
AIDS, arguing that this would unfairly bias the jury into believing
Watson's testimony against Collier's interest. The court found no
reason to credit this argument, pointing out that the context in
which it came up was Watson stating that he had trouble remembering
things due to his AIDS. "The fact that Watson had AIDS does not in
and of itself in any manner affect his credibility because it is
not probative as to his honesty or likelihood of testifying
accurately," wrote Justice Larson for the court. The court also
rejected Collier's objections to various arguments made by the
prosecutor in his closing statement to the jury, including the
theory that Collier sought a gay victim who would not report the
crime; the court found that such an inference was not
"unreasonable," and that the prosecutor could present a theory in
closing argument that provided a "plausible motive for the
selection of a robbery victim." A.S.L.
Lesbian-Baiting Actionable Under Title VII, Says District Court in
Kansas
The U.S. District Court in Kansas is currently hearing a suit in
which the female plaintiff claims sexual harassment and retaliatory
discharge under both Title VII and the tort of intentional
infliction of emotional distress, and which revolves around
plaintiff's supervisor's comments concerning her alleged
lesbianism. The case's most recent memorandum and order, Miller v.
Brungardt, 1996 WL 88747 (Feb. 9), decided the identity of the
parties and claims. The analysis used by the court in reaching its
decision is of interest because of the court's understanding that
lesbian-baiting is a form of sexual harassment.
Plaintiff Jane Miller, a school counselor, brought suit against the
school district, her school's superintendent, and its vice
principal after the latter allegedly made sexually inappropriate
comments that included accusing her "of engaging in a lesbian
relationship" with a student's mother and other "sexually explicit
comments concerning lesbian behavior." When Miller reported the
vice principal's actions to the school superintendent, she was
allegedly reprimanded, and the superintendent failed to take
remedial action.
After first dismissing plaintiff's Title VII claims against the two
individuals, stating it would be "duplicative" to sue both the
school district and its employees in their official capacities
(Title VII does not allow suits against individuals), District
Judge Van Bebber turned to a central question, which was whether,
when suing individual employees of a municipality (such as the
school district) under the Kansas Tort Claims Act, the plaintiff
must give them notice of suit prior to its commencement. Miller
had failed to provide such notice. Relying on an earlier Kansas
Court of Appeals case for its understanding of the notice
requirements, the court found that notice must be provided to
municipal employees only when "the employee's actions occurred
within the scope of employment" since the municipal employer would
then be held liable for the acts of the employee.
Taking plaintiff's allegations as true for the purposes of this
ruling, the court found that the vice-principal's lesbian-baiting,
characterized by plaintiff Miller as "threatening, intimidating and
abusive," fell outside the scope of the vice-principal's
employment. "`[S]exual harassment . . . is not within the job
description of any supervisor or any other worker in any reputable
business.'" Thus, the notice requirement did not attach to
Miller's claim of intentional infliction of emotional distress
against the vice-principal. The court used the same analysis to
find that the actions of the superintendent were within the scope
of his employment, and that because Miller failed to supply him
with notice, her suit against him should be dismissed.
Miller now consists of a Title VII claim of sexual discrimination
against the school district, and a claim of intentional infliction
of emotional distress for sexual harassment against the vice
principal. J.H.
City Polygraph Tests Violate the Constitution
Finding that the city of Houston had failed in "its responsibility
as a government to conduct itself with minimal rationality and
regularity," U.S. District Judge Hughes ruled in Woodland v. City
of Houston, 1996 WL 103922 (S.D.Tex., Jan. 4), that the city
violated the constitutional rights of applicants for positions in
the police and fire departments by using polygraph tests that
probed into the private lives of applicants. According to
allegations by the three plaintiffs, all of whom were told that
they had "failed" the test, questions were posed about sexual
behavior with animals, affairs with married women, girlfriends,
cohabitation, extramarital affairs, homosexual behavior,
masturbation, sexual activity as a teenager, sexual positions,
thefts, criminal behavior as a child, drug use, and intimate
details of sexual relations with a spouse, and religious views.
The court found that many of these questions were unnecessarily
intrusive, and that apparently the polygraph examiners used by the
city were not adequately trained to use a standard schedule of
questions uniformly administered to applicants. "The City of
Houston has an interest in hiring honest able persons for public
safety jobs. As a means to that end, the city may use the
polygraph, but the questions asked in a pre-employment polygraph
test must reasonably examine the applicant's present qualifications
to perform the job. The city, however, asked questions of
applicants for the fire, police, and airport police departments
that were insulting, intrusive, argumentative, embarrassing, and
wholly unrelated to its legitimate interest. The city asked
questions about consensual sex, marital harmony, sex with animals,
lifetime recreational drug use, non-violent criminal acts as
minors, misdemeanors as adults, religious preferences, political
associations, and other subjects wholly unrelated to the
applicants' ability to perform the job," found Judge Hughes.
The court concluded that it was necessary to issue an injunction
against continuation of such practices, even though the city's
lawyers had represented to the court that they would not continue.
The court also awarded damages to the three named plaintiffs in
significant amounts, as well as more than $100,000 in attorney's
fees and costs. A.S.L.
Federal Court Refuses to Order NYC to Let Gay Irish March
In the aftermath of last year's U.S. Supreme Court ruling that a
private organization could not be compelled to allow a group whose
views it disapproves to march in its parade, Hurley v. Irish-
American Gay, Lesbian & Bisexual Group of Boston, 115 S.Ct. 2338
(1995), New York's Irish Lesbian and Gay Organization (ILGO)
applied for a permit to hold its own parade on 5th Avenue on March
16, right before the "official" St. Patrick's Day Parade sponsored
by the Ancient Order of Hibernians. In anticipation of the
expected denial of the permit (which was, in fact, denied), ILGO
sued Mayor Rudolph Giuliani, Police Commissioner William Bratton
and the City of New York in federal district court to contest sec.
10-110 of the N.Y.C. Administrative Code, which governs issuance of
parade permits, as being unconstitutional under both the federal
and state constitutions, both on its face and as applied to ILGO.
Preliminary and permanent injunctive and declaratory relief were
sought.
In ILGO v. Giuliani, 1996 WL 91633 (S.D.N.Y., March 4), District
Judge John G. Koeltl dealt with a raft of preliminary motions.
ILGO filed an Order to Show Cause on Feb. 27 seeking expedited
discovery. At a hearing on that date, the City moved to have the
whole matter transferred to Judge Keenan, who had decided the 1995
parade permit case, and sought to dismiss the complaint on res
judicata or collateral estoppel grounds before proceeding with
discovery. Judge Koeltl denied the motion to transfer because the
prior litigation was closed and there would be no conservation of
judicial resources in his view; neither would the convenience of
parties or witnesses be served by a transfer. Judge Koeltl also
denied the City's motion to dismiss. Since the parade was only two
weeks away at that time, the court ruled that the hearing on the
preliminary injunction would have to be held before then; deferring
the preliminary injunction hearing until a motion to dismiss could
be heard would interfere with the ability of both parties to
address the issues of the preliminary injunction. ILGO's motion
for expedited discovery was also denied.
ILGO's discovery request was vast. It encompassed all documents
relating to parade permit requests, whether granted or denied,
since 1985. Memoranda and reports from administrative and law
enforcement sources regarding assignment and deployment of police,
traffic control, sanitation and other resources for each of the St.
Patrick's Day parades since 1990 were sought. The City responded
by filing a motion for protection and submitting more limited
documentation relating to this year's parade. The court found that
the document request was not tailored to the needs of the pending
litigation or the time constraints presented, and that ILGO
conceded that most of the information sought could have been
obtained via FOIA requests that could have been filed at any time
prior to institution of this action. Koeltl scheduled a further
hearing for March 11.
In the event, Koeltl was unpersuaded by ILGO's case, and ruled
March 14 against ILGO's request for an order allowing it to hold
its own parade on 5th Avenue. ILGO v. Giuliani, 1996 WL 115845.
Although the suit was not dismissed in its entirety, the opinion
makes clear Koeltl's strong disposition to rule against ILGO on the
merits. A main point of contention was the standard ILGO would
have to meet to obtain preliminary injunctive relief. Since this
is a case where such preliminary relief would effectively give ILGO
its ultimate relief of allowing to hold a parade on 5th Avenue
prior to the "official" parade, Koeltl decided ILGO's burden was
relatively high: to show a substantial likelihood of success on the
merits. Finding that the City's only reason for denying the permit
was due to the logistical problems of dealing with two parades on
the same avenue on the same date, and that the City would have
denied a second permit regardless who applied for it, Koeltl found
that the City had not discriminated on the basis of ILGO's
viewpoint. Furthermore, he pointed out that the Police Department
had attempted to contact ILGO to discuss alternative times and
places for an ILGO march, but that its calls were not returned by
ILGO. Koeltl also criticized ILGO for waiting to file its lawsuit
until such time that the whole proceeding would have to be rushed,
noting that in light of its past experiences, ILGO should have
sought its permit and brought its litigation much earlier. S.K. &
A.S.L.
Court Protects Nude Scenes on Stage
Angels in America, a gay-themed winner of the Pulitzer Prize and
the Tony Award for best play, has been presented by touring
companies in several cities around the country without any special
fuss, but its arrival in Charlotte, North Carolina, caused an
uproar when local law enforcement officials expressed objections to
scenes of full frontal male nudity on stage and threatened to
arrest the actor portraying Prior Walter. The Performing Arts
Center, landlord for the Charlotte Repertory Theatre, said it would
not let the play go on unless the theater company restaged the
offending scenes.
Rather than bow to censorship, Charlotte Repertory went to court
and obtained a temporary restraining order against the Performing
Arts Center, the local police and other law enforcement officials
from North Carolina Superior Court Judge Marvin Gray, signed just
hours before the curtain was to go up on March 20. In his order,
Judge Gray stated: "Plaintiffs have demonstrated that one or more
of the Defendants or all of them acting together are engaged in the
prior restraint of free speech in violation of the Constitution of
the United States and the Constitution of North Carolina. The Play
is an artistic presentation; its author has won
a Pulitzer Prize for the Play. Nudity to the extent the same occurs
in the Play appears to constitute artistic expression. Such
conduct is not properly the subject of criminal prosecution under
theories of obscenity and/or indecent exposure." We always
suspected the Pulitzer Prize would come in handy for something!
The controversy consumed thousands of words in numerous articles in
the Charlotte Observer, which noted that ticket sales picked up
tremendously as the controversy mounted. Judge Gray's TRO was good
for ten days, and the theater company was set to seek more
permanent injunctive relief to protect the rest of the play's run.
Prior Walter stripped down for his physical exam on stage, and the
sky did not fall on Charlotte. A.S.L.
D.C. District Court Dismisses All Claims Brought by Pro Se Gay
Inmate
Claiming that he had suffered rape, assault, unnecessary transfer
and segregation and dangerous work assignments as a result of his
sexual orientation, William A. Risely sued the Director of the
Federal Bureau of Prisons and other high bureau officials alleging
violations of his First, Fourth, Fifth, Eighth and Thirteenth
Amendment rights as well as violation of various civil rights
statutes. Risely sought monetary relief from the defendants in
their individual capacities and injunctive relief in their official
capacities. Risely also claimed that Bureau officials retaliated
against him by denying him access to the courts and fabricating his
medical records to reflect a psychiatric illness. Judge Richey of
the District of Columbia District Court dismissed all of Risely's
claims. Risely v. Hawk, 1996 WL 86465 (D.D.C. Feb. 15, 1996).
The court first dismissed the plaintiff's claims under 18 U.S.C.
secs. 113, 211, 241 and 1583, ruling that these statutes do not
create a private right of action for criminal offenses by
government officials. The court also determined that the civil
rights statutes, 42 U.S.C. secs. 1981, 1982, 1983, 1986, 1987, were
all inapplicable since the plaintiff was not claiming racial
discrimination, state action, or conspiracy to deny equal rights to
a protected class. His claim under 42 U.S.C. sec. 1997 was ruled
inapplicable because this statute only authorizes suits by the U.S.
Attorney General against state, not federal, actors.
The court dismissed Risely's federal tort claims because he had not
alleged that he had been either subject to illegal search and
seizure or to slavery. The court stated that his treatment at the
hands of other inmates was encompassed by his Eighth Amendment
claim.
The court also dismissed Risely's claims for injunctive relief
because he had filed two prior suits, with identical claims, in
Arizona and in California. To Risely's argument that these suits
were unjustly dismissed because defendants had obstructed his
prosecution of his claims, the court responded that his recourse
was to appeal the dismissals rather than to file new claims. The
judge noted that Risely had not appealed in either case. The court
ruled that the District of Columbia's long-arm statute did not
extend to those defendants working in federal penitentiaries in
other states when they had insufficient contacts with the forum.
The remaining defendants were all high-level Bureau of Prisons
officials employed in the District. However, the court ruled that
respondeat superior is not a theory under which liability can be
found in a Bivens suit.
As to Risely's Eighth Amendment claim that Bureau of Prisons
officials had acted with "deliberate indifference" to his welfare
under the Farmer v. Brennan, 114 S.Ct. 1970 (1994), standard, where
the Supreme Court held that a warden could be held individually
liable for Eighth Amendment violations where he knew of and
disregarded an excessive risk to the inmate, the district court
ruled that case inapplicable. The court held that Risely's
allegations fell short of stating such a claim and that it was
unlikely that the warden's liability under Farmer would apply to
higher officials. Furthermore, the court found that Risely had
failed to show that any of the officials' actions had been
objectively unreasonable or had violated the law, so that, even if
he had stated a valid Eighth Amendment claim, they were entitled to
qualified immunity. H.G.U.
Marriage & Domestic Partnership Notes
Legislatures in Idaho, Georgia and Colorado approved bills seeking
to block recognition of same-sex marriages performed in other
jurisdictions early in March. Republican Governor Phil Bratt of
Idaho signed the bill without any particular suspense, but Governor
Roy Romer of Colorado vetoed his state's bill on March 25, calling
it "divisive" and "mean-spirited." Romer indicated that he would
sign a bill stating that a marriage is defined as the union of a
man and woman, but only if it also provided for the establishment
of a state commission to study the need for legal recognition for
same-sex couples. In public ruminations reported in the week
leading up to the veto message, Romer indicated interest in
providing some sort of state domestic partnership system for same-
sex couples. At our deadline, Georgia's governor had not yet
acted.
Evan Wolfson, Director of The Marriage Project at Lambda Legal
Defense Fund, reported March 25 that there are anti-same-sex
marriage bills pending in 15 states, such bills have been defeated,
withdrawn or killed in 11 states, and anti-same-sex marriage bills
have become law in three states: Idaho, South Dakota, and Utah.
Legislative leaders in Hawaii have indicated they do not intend to
bring up for a vote measures passed in one chamber as a result of
the current same-sex marriage litigation in that state. The Senate
passed a domestic partnership bill, which will not see the light of
day in the House, and the House passed a proposal to amend the
state constitution to overrule the Baehr same-sex marriage
decision, which Senate leaders say will not move out of committee
during this session. Barring unforeseen maneuvering in either
house prior to the May adjournment, it appears the next major event
in Hawaii will be the commencement of the trial in Baehr v. Miike
(as the case is now known) in August.
The Boston City Council approved a home-rule petition for
submission to the legislature, seeking authority to adopt a
domestic partnership policy for city employees. The petition,
introduced by Mayor Thomas M. Menino, does not specify the contours
of the ultimate domestic partnership policy. Among the 9 council
members who voted for the petition (with 4 opposed) there was a
division of opinion as to whether benefits should be provided just
for same-sex partners or for all unmarried partners of city
employees regardless of sex. Mayor Menino said he only supported
benefits for same-sex partners "because they can't get married.
Everyone else can and should get married to get benefits." An
amendment to the petition, supported by the Mayor and the
petition's leading proponent, Councilmember Thomas M. Keane Jr.,
would have limited the policy to same-sex partners, but was
defeated, with two supporters of the petition voting against it
because they believed heterosexual couples should also be entitled
to benefits. Boston Globe, March 14.
The Albany Times Union reported that the Common Council of the city
of Albany, N.Y., voted the previous day to establish a domestic
partnership registry in the city. Mayor Jerry Jennings signed the
legislation on March 22. It "creates a new license in City Hall,
open to people who can prove they have been cohabitating for at
least six months and swear an oath that they are committed to each
other's financial and emotional support," according to the Times
Union (March 19). Registration will cost $25, and will provide no
tangible benefits.
The Board of Education for the San Jose, California, Unified School
District voted 3-2 on Feb. 1 to extend fringe benefits to domestic
partners of its employees (including both same-sex and opposite sex
couples). On March 7, spurred on by pastors at 22 area churches,
more than a hundred vocal opponents of the Board's action attended
the Board's next meeting. Although there were also some supporters
of the policy present, most of the comment was reportedly strongly
opposed. San Jose Mercury News, March 8.
Implementing a recent Board of Supervisors measure, the City of San
Francisco conducted a mass "wedding" ceremony for same-sex couples
on March 25, with Mayor Willy Brown presiding. New York Times,
March 26.
Two amendments have been proposed to Michigan's Higher Education
Appropriations Bill for the next school year, SB850, on the subject
of domestic partnership. One would reduce funding to any public
university that extends such benefits to unmarried partners of
university employees by "an amount equal to the cost of extending"
the benefits. The other amendment require that any university
extending such benefits make a report on the expenses to the
director of the department of management and budget for the state
and the house and senate appropriations committees.
Sometimes when you ask for equality, what you get is not quite what
you wanted. Hertz Corporation, responding to complaints that it
was charging an "additional driver fee" for same-sex couples but
not for married couples (unlike other major car rental companies,
who have dropped the fee), has instituted an additional driver fee
for all couples, whether heterosexual or homosexual. Hertz acted
after adverse comment about its discriminatory policy appeared in
Out & About, a gay travel magazine. Now Out & About cautions its
readers to add in the fee when comparing Hertz's rates to other
auto rental companies. Washington Blade, March 15. A.S.L.
Hearings Due on ENDA
U.S. Representative Peter Torkildsen (R.-Mass.), chair of the
Subcommittee on Government Operations of the House Small Business
Committee, announced March 19 that his subcommittee will hold
hearing on the Employment Nondiscrimination Act of 1995, H.R. 1363,
S. 932, a bill that would amend federal civil rights laws by
banning sexual orientation discrimination by employers with fifteen
or more employees. Although Torkildsen predicted that the bill
would not go to the House floor during this session of Congress,
his announcement that hearings will be held in June represented a
breakthrough of sorts, in light of the scant participation of
Republicans as co-sponsors of the bill. (The total sponsorship
from both houses of Congress shows 144 Democrats, 15 Republicans,
and 2 Independents.) Torkildsen noted in his statement (at a
briefing session for Human Rights Campaign and P-FLAG) that more
Republicans sponsored the bill in this Republican-dominated
Congress than in the prior Democratic-sponsored Congress. BNA
Daily Labor Report No. 54, 3/20/96. A.S.L.
Law & Society Notes
Public acceptance for lesbians and gay men is growing, according to
a USA TODAY/CNN/GALLUP telephone poll conducted March 15-17 and
reported in USA TODAY on March 19. 44% of respondents found
homosexuality "acceptable," compared to 38% in 1992 and 34% in
1982. However, support for same-sex marriage was meager: only 27%
of respondents supported it, while 68% stated opposition with the
rest stating no opinion. The numbers on same-sex marriage are
strikingly similar to local polls conducted in Hawaii, the state
where the most intense debate is now going on about same-sex
marriage as both sides prepare for the August trial in Baehr v.
Miike.
Major metropolitan newspapers and media outlets nationwide gave
extensive attention to the latest figures on anti-gay violence
releases by the National Coalition of Anti-Violence Programs.
While the number of reported incidents fell 8% from 1994 to 1995
(including a drop in reported murders from 29 to 25), overall the
reported crimes tended to be more violent, with a 10% increase in
assaults and rapes. New York continued to lead the nation with the
greatest number of reported anti-gay crimes. Newsday, March 13.
When prisoners in the Hennepin County jail reported to a supervisor
that volunteer workers at the jail had made comments to prisoners
that homosexuality was a sin, the County Attorney and Board of
Commissioners adopted a policy prohibiting such statements by
prison volunteers. Then prison chaplains complained that their
freedom of speech was being restricted. The Minnesota Family
Council, an anti-gay group, has filed a federal court suit alleging
that the new policy violates the First Amendment rights of the
volunteers. County Commissioner Jim Bourey released a statement:
"We believe that encouraging everyone to be respectful in how we
treat one another is not in conflict with our Constitution's
guarantees of freedom of speech and religion. Specifically, our
policy and practices does not [sic] promote or proscribe any
particular set of beliefs or values, including religions or sexual
orientation." St. Paul Pioneer Press, March 7.
An Associated Press article featured in many newspapers in mid-
March reported that a Brookline, Massachusetts, couple are suing
the town of Brookline for $359,571 in damages (including a $300,000
emotional distress claim) on behalf of their teenage daughter, who
they claim suffered emotional distress when her public school
teacher came out as a lesbian in the classroom and the school
refused to allow her to transfer to another class. Jeannine and
Thomas Jenei allege that their daughter Johanna was subjected to
ridicule for her Christian beliefs, and eventually had to transfer
to a private Christian academy.
A Pima County, Arizona, jury rejected a claim by a murder defendant
that he had to kill the victim because of homosexual advances. The
jury found Beau John Greene guilty of first-degree murder in the
death of Roy Andrew Johnson, a University of Arizona music
professor whose body was found early in March 1995 after he failed
to return home after giving a concert in a Tucson church. Arizona
Republic, March 16.
Desperately seeking a way to keep an active ROTC unit on campus in
the face of military discrimination, a campus task force at the
Massachusetts Institute of Technology (MIT) recommended that ROTC
stay but be required to allow gay students to enroll. Of course,
under military regulations openly gay students who graduated from
the ROTC program could not be commissioned officers in the
military. The task force also proposed that MIT replace any ROTC
scholarship that was lost by an MIT ROTC student by "coming out."
A Defense Department spokesperson expressed doubt that the military
could allow an ROTC program to operate on that basis. Boston
Globe, March 20.
The Albany County, New York, legislature voted 24-13 on March 11 to
establish a Human Rights Commission with authority to hear
complaints of discrimination on the basis of sexual orientation
(and such other bases as race, religion, national origin, sex, age,
disability, and marital status). The Albany Times Union reported
on March 12 that the bill passed on a party line vote. The Roman
Catholic Diocese of Albany supported the bill (!!) after it was
amended to allow religious organizations to give hiring preference
to members of their faith.
Jack Daly, a first year law student at the University of North
Carolina, is lead plaintiff in a suit filed in the U.S. District
Court for the Western District of North Carolina challenging the
constitutionality of minority scholarships. Among those targeted
as violating the First Amendment and Equal Protection rights of
students is the Alan Berman Scholarship, which grants eligibility
preference to lesbian or gay students or advocates for lesbian and
gay rights. The Scholarship is funded entirely by private
contributions, but is administered by the UNC Law School. Daly
claims that he is excluded from applying for the scholarship as a
Fundamentalist heterosexual Christian who is opposed to lesbian and
gay rights. The current holder of the scholarship, 3rd-year
student Doug Ferguson, is considering intervening in the lawsuit to
protect the rights of potential future recipients. Those
interested in contacting Mr. Ferguson about the litigation can
reach him at cdfergus@email.unc.edu, or 919-932-5817.
Reacting to a survey showing the homophobia was a problem in the
school system, the Montgomery County, Maryland, Board of Education
unanimously voted to amend its human relations policy to prohibit
discrimination based on sexual orientation and to add sexual
orientation issues to those to be addressed in human relations
curricula. The vote seemed easy, as the county has a non-
discrimination policy and there are similar policies in neighboring
school districts. But a vocal group of anti-gay parents
immediately began agitating for repeal of the policy, raising
alarms that the board may backslide. Washington Post, March 24.
The City Council in Lansing, Michigan, voted to enact a human
rights ordinance that forbids sexual orientation discrimination.
The 5-3 vote followed weeks of emotional debate, according to a
March 21 report in the Detroit Free Press. Neighboring East
Lansing has had a similar ordinance for more than ten years. A
group opposed to the ordinance has vowed to undertake a petition
drive to seek repeal, either by the city council or ultimately
through a ballot question.
The Richmond Times-Dispatch reported March 3 that Sharon Bottoms
has decided to appeal the latest decision denying her custody of
her son Tyler.
Conservative politicians are fond of saying that there is no need
for "special laws" to protect gays from discrimination because they
are already protected by existing laws. Now one such politician,
New Hampshire Governor Steve Merrill, is being sued for breach of
contract for making such a statement. Michael Snell and Marc
Smith, a gay couple from Hollis, N.H., have been frustrated in
trying to sell their house, claiming that real estate firms are
refusing to take their listing and that one firm's laxness
concerning security during an open house led to a jewel theft of
$80,000. When they sought to file a complaint with the state's
Real Estate Commission alleging sexual orientation discrimination
by brokers, the Commission rejected the charges, opining that gays
are not protected from discrimination. Snell and Smith filed suit
in Rockingham County Superior Court, seeking an order against the
Real Estate Commission and breach of contract damages against the
governor. Boston Globe, March 14.
Responding to the introduction of a shareholder resolution calling
on the company to adopt a set of standards designed to prevent
anti-gay discrimination, Johnson & Johnson voluntarily agreed to
adopt a written corporate policy banning sexual orientation, in
exchange for which the sponsors withdrew the resolution. The
sponsors were willing to withdraw their resolution even though
J&J's written policy does not address all the items in the
resolution, as a showing of good faith.
We previously reported that two out of three openly-gay members of
Congress were planning not to run for re-election this year. Now
it is reported that U.S. Rep. Steve Gunderson (R.-Wis.) may be
reconsidering. If both Gunderson and Rep. Gerry Studds (D.-Mass.)
retire as previously announced, Rep. Barney Frank (D.-Mass.) would
be the only openly gay incumbent running for the House this fall.
There are numerous openly gay candidates contending in Democratic
and Republican primaries for the chance to contest House seats in
the fall. The Advocate, April 2.
A board meeting of Gay, Lesbian, and Bisexual Local Officials
(GLBLO), an organization of openly lesbian and gay local
officeholders, held in Washington, D.C., on March 11, approved a
resolution to ask the U.S. Census Bureau to include questions on
the 2000 census form to elicit information about gay households.
The organization will draft proposed questions for submission to
the Census Bureau by April 1, 1997, which is the deadline for
proposing questions to be included. New York City Councilmember
Tom Duane is president of GLBLO. Washington Blade, March 15.
While the federal courts battle over the question whether same-sex
workplace harassment is covered by Title VII of the Civil Rights
Act of 1964, the federal government has decided to settle a lawsuit
brought by a gay employee of the U.S. Department of Veterans
Affairs, alleging creation of a hostile environment through
homophobic comments and unwanted physical contacts from co-workers.
Under the settlement in Villeneuve v. U.S. Department of Veterans
Affairs, which was filed in U.S. District Court in Philadelphia,
the plaintiff, no longer employed by the defendant, will receive a
lump sum payment of $75,000 damages and the equivalent of workers
compensation benefits dating back to November 1994 when the
plaintiff stopped working due to the harassment. Mental and
emotional problems stemmis
The Guardian reported March 6 that the Netherlands "is on the verge
of becoming the first country in Europe to allow homosexual
marriages." While it is difficult based on press reports to know
whether they refer to "marriage" or to the type of registered
partnership that is sometimes called "gay marriage" in the
Scandinavian countries, this report claims that most members of the
governing parties in the Parliament were supporting a measure that
"would not only give homosexual and lesbian partneely resembling the Scandinavian model.
Queer News Aotearoa, a gay New Zealand news service, reported that
three lesbian couples were filing papers in the Auckland High Court
seeking marriage licenses, after having been turned down by
registry offices in their home cities. The Marriage Act 1995 is
gender neutral, and in 1993 New Zealand enacted a ban on sexual
orientation discrimination, so the women argue that the Act should
be construed to authorize same-sex marriage.
The Constitutional Court lth, retirement and other government benefits regardless
of their marital status. Washington Blade, March 22.
An Associated Press story published by the Chicago Tribune on March
11 reported that the South African Parliament's defense committee
has instructed the Army "to stop discriminating against people who
are openly gay or lesbian in its recruitment drives," and that "in
December, the first gay wedding was celebrated by two men in
Johannesberg." The story gave no further explanation of the legal
status of this wedding. A.S.L.
Professional Notes
San Francisco Mayor Willie Brown appointed five openly lesbian or
gay people to commissionerships on Feb. 13, including lesbian
attorney Martha Knutzen, who will serve on the city's Human Rights
Commission. Sebastian Patti, an openly gay attorney, won the
Democratic nomination as a candidate for Cook County, Illinois,
Circuit Court in the recent Illinois primary; due to the
demographics of the district, this is considered tantamount to
election. Similarly likely to achieve an easy victory in the
general election is openly-gay and HIV+ candidate Larry McKeon, who
won nomination for a seat in the Illinois State House of
Representatives. Results in the California judicial races, in
which several openly gay candidates were participating, were not
known at our deadline and will be reported in the May Law Notes.
New York gay attorney and LeGaL member Mark Barnes has resigned as
executive director of the AIDS Action Council in Washington and
will return to full-time law practice in New York. A.S.L.
AIDS AND RELATED LEGAL NEWS BRIEFS
9th Circuit Upholds High-Range Sentence for HIV+ Defendant
Kevin Pollard was sentenced to 78 months in jail pursuant to the
federal Sentencing Guidelines following a guilty plea to bank
robbery. The district court enhanced Pollard's sentence by three
levels because he was carrying a dangerous weapon during the bank
robbery. Under the Guidelines, Pollard could have been sentenced
to anywhere from 63 to 78 months based on an offence level of 24.
The district court found that Pollard posed a "very clear danger"
to the community and sentenced him to the maximum of 78 months. In
so doing, the court noted that Pollard had four convictions for
lewd behavior and prostitution subsequent to testing HIV positive.
Pollard appealed the application of the full 78 month sentence,
arguing that his HIV status was inappropriately considered in
determining his sentence. The 9th Circuit Court of Appeals
affirmed. United States v. Pollard, 1996 WL 80181 (9th Cir.
February 23, 1996). The Court of Appeals found that public safety
is one of the factors the district court may consider when imposing
sentence. Furthermore, the court found that "[p]urely
discretionary decisions authorized by the Guidelines... are not
reviewable on appeal."
The Ninth Circuit concluded its opinion with the following, rather
confusing, statement: "Because Pollard was aware that he was HIV
positive, the district court's purely discretionary decision to
sentence Pollard to the high end of the applicable guidelines range
is not reviewable on appeal." The court implies that because
Pollard is HIV positive and has previously been convicted of
prostitution, he poses a risk to the community by possibly
spreading his infection to other people. However, the court never
actually makes this statement. The court instead states that
Pollard's knowledge of his HIV status alone is enough to make him
a "very clear danger" to the community. This reasoning defies
logic and has the implication that HIV+ people are too dangerous to
be free in the community. This is pretty scary stuff. T.V.L.
8th Circuit Upholds Dismissal of HIV-Transmission Case as Time-
Barred
The 8th Circuit Court of Appeals affirmed a decision by the U.S.
District Court for the Southern District of Iowa to dismiss HIV-
transfusion litigation that was filed by the plaintiff more than
two years after he learned about his HIV infection. Estate of Doe
v. American Association of Blood Banks, 1996 WL 106644 (March 13).
Doe received a transfusion during open heart surgery in 1984. On
May 4, 1990, he was notified that he had tested positive for HIV,
and was later diagnosed with AIDS. Doe filed suit against the
Blood Banks association and the Red Cross on May 12, 1992. Iowa
has a two-year statute of limitations. The trial court dismissed
the claim as time-barred. On appeal, Doe argued that the two years
should run from the time he discovered that his injury was due to
negligence by the Red Cross. Disagreeing, the court observed that
Iowa's version of the discovery rule embraces "the concept of
inquiry notice." That is, the time to file begins to run once a
potential plaintiff "becomes aware of facts that would prompt a
reasonably prudent person to begin seeking information [about] the
problem and its cause." A.S.L.
D.C. District Court Rules Adverse Inference Must Be Drawn From
Government's Destruction of Donated Blood Sample
Letha Rice was infected with HIV as a result of a blood transfusion
during bypass surgery at Walter Reed Army Medical Center on March
1, 1990. The Army's Blood Center notified Walter Reed on July 20,
1990, that a previous donor had tested HIV+ and urged an
investigation. On August 17, Walter Reed confirmed that Rice had
received blood that had earlier been donated by the same person.
Rice tested positive on February 19, 1991, and her attorney
requested medical records from Walter Reed. In October and
November 1991, the remainder of the blood donation from which Rice
had been transfused "was exhausted by testing conducted by the
Army, and is therefore unavailable to plaintiff." Rice, who
subsequently filed suit against the government, moved to preclude
the government from introducing any evidence, direct or
circumstantial, as to the condition, testing, or test results of
any of that exhausted donation, on the ground that by exhausting it
the government had precluded her attorney from independently
testing it. (The key issue, of course, is whether the HIV-
contaminated blood contained sufficient antibodies so that it would
have tested positive.)
Ruling on the motion on Feb. 14, Judge Robinson agreed with the
plaintiff in Rice v. United States, 1996 WL 99334 (D.D.C.), that at
the time the Army doctors went ahead and exhausted the rest of the
donation through experimental testing, they were on notice of a
potential claim and thus could be charged with knowing that they
were, in effect, destroying evidence, and that their contention to
the contrary was "simply implausible." Although the government
showed that its purpose in undertaking the testing was a
"compelling public health interest in testing [the donation] to
assess the accuracy of measures to detect the HIV virus in donors
who were HIV-positive but had not yet built up sufficient
antibodies to be reactive to the FDA-approved screening vehicles
then available," it had made "no effort to explain why defendant's
public health interest could not have been accomplished without
exhaustion of the remainder of the sample." Consequently, Judge
Robinson found that the evidence had been destroyed with "gross
indifference or reckless disregard" for its relevance to the
foreseeable litigation, and "an adverse inference with respect to
the testing of [the donation] is compelled." The motion was
granted. A.S.L.
Alabama Appeals Court Voids Will of HIV+ Man
The Alabama Court of Civil Appeals affirmed a jury verdict voiding
the will of an HIV+ gay man devising property to an unrelated
cohabitant on the grounds of undue influence. Jackson v. Smith,
1996 W.L. 100196 (Mar. 8). Jackson lived with Kenneth Smith for
approximately six years prior to Smith's death. The opinion is not
clear as to whether the two men were lovers. After a heart attack
in 1992, Smith became increasingly ill. Smith's blood kin
testified that he was physically weak and not of sound mind when he
executed a will in 1993. The will, which Jackson drafted and
witnessed, named Jackson as the estate's sole beneficiary. During
the last year of his life, Kenneth Smith also executed documents
transferring ownership of real property to Jackson, and naming
Jackson as the beneficiary under his life insurance policies.
When Jackson presented the will for probate, Smith's mother
contested her son's capacity to make it. In the appellate opinion,
Judge L. Charles Wright held that the record supported the jury
finding of undue influence. The opinion may be read as protecting
the decedent's estate from an opportunist, or alternatively, it may
also be read as disrespectful of Kenneth Smith's primary
relationship with Jackson, dismissive of Smith's intent to control
his own property in the face of infirmity, scandalized by the
intergenerational relationship between the two men, and as unduly
favoring the testimony of the biological family and Kenneth Smith's
preacher. D.W.
Oregon Appeals Court Upholds Conviction For Attempted Murder by HIV
Transmission
InState of Oregon v. Hinkhouse, 1996 WL 99406 (Or.App., March 6),
the defendant argued that his conviction on ten counts of attempted
murder and assault based on his conduct of engaging in unprotected
sex without revealing his HIV+ status must be set aside because the
evidence is insufficient to establish that he intended to cause
death or serious physical injury to the victims.
After testing positive, Timothy Hinkhouse was advised about how HIV
is transmitted by his probation officer, Bill Carroll, who
instructed him to use condoms. On more than one occasion Carroll
told Hinkhouse that if he passed the virus to another person "he
would be killing someone" and that "that is murder". At one point
after being taken into custody for a parole violation where he was
overheard bragging about his sexual prowess he was asked as a
condition of his release to sign a probation agreement not to
engage in unsupervised contact with women without Carroll's
permission. Throughout this time Hinkhouse involved himself in
numerous sexual relationships refusing to wear condoms even when
asked, and claiming that he was HIV negative when the matter came
up. In one instance Hinkhouse had repeated unprotected intercourse
with a 15-year-old girl. In another, after using condoms for three
or four weeks, he penetrated the woman involved without a condom
after promising to use one. The intercourse in this case got
rougher and sometimes involved vaginal bleeding as well as
attempt sided with the state's expert who believed that
Hinkhouse's statements coupled with his repeated behavior of
systematically recruiting and exploiting multiple partners
demonstrated intentional, deliberate conduct. The Court of Appeals
of Oregon agreeempted murder and clearly showed a conscious
objective of causing serious physical injury to the other women he
was involved with. D.P.
California Appeals Court Vacates Damage Award to Estate of PWA
A unanimous panel of the California Court of Appeal, First
District, ruled March 25 in Sullivan v. Delta Air Lines, Inc., 1996
WL 130703, that a jury award of $275,000 for emotional distress in
an employment discharge case must be vacated because the plaintiff
died while an appeal of the verdict was recluded at retrial. A.S.L.
Counsel Appointed in Civil Action brought by HIV+ Inmate
In Hetzel v. Swartz, 1996 WL 101759 (M.D.Pa., March 4), the court
considered a motion for appointment of counsel in a civil action
brought by Roy Hetzel, a former inmate at Luzerne County Prison.
Hetzel, while still incarcerated, had brought an action pro se
against Community Counseling Services and their employee, Jim
Swartz, who works as a counselor at the prison. Hetzel v. Swartz,
909 F.Supp. 261 (M.D.Pa. 1995). The complaint alleged failure to
provide psychological or psychiatric care as required by the Eighth
Amendment, failure to provide Hetzel's medical records to him
pursuant to his express authorization via a release form, and
violation of his right to freedom from invasion of privacy
guaranteed by the Fourteenth Amendment. Although Hetzel revealed in
an opposing brief that he had AIDS, this information was never made
part of the original complaint.
In the original action Community Counseritless. Regarding Hetzel's allegation that unauthorized
medical information was disclosed to an unnamed doctor and other
unnamed prison employees, the original court pointed out that
Hetzel failed to provide information needed by the court to make
this determination, such as the nature of the information
communicated and whether the person the information was
communicated to had a legitimate right to know about his medical
condition. Regarding the allegation that he was denied counseling
although he had a terminal illness, the court again stated that
Hetzel had not provided enough information about the effects of his
terminal illness on his diminishing mental capacities and physical
health, and his need for such counseling, for the court to co153, 155-57
(3d Cir.1993), interpreting a holding by the Third Circuit that
appointments of counsel for an indigent litigant should only be
made "upon a showing of special circumstances indicating the
likelihood of substantial prejudice to him resultin. Their theory is that the live polio virus
vaccine uses viruses grown in the kidney cells of African green
monkeys, and that either HIV-1, HIV-2 or SIV (a simian counterpart
of HIV that does not cause illness in humans) may have contaminated
the vaccine and been transmitted to Whitney. Whitney has tested
positive only for HIV-1. Her discovery request, resisted by the
defendants, is that samples retained by the defendants for the
vaccine lot used for Whitney, be tested for HIV-2 and SIV as well
as HIV-1, the Williams's contending that Whitney might have been
initially infected with HIV-2 or SIV that then mutated in her body
to HIV-1. Defendants contend this is scientifically impossible,
and would only agree to test the samples for HIV-1. U.S.efendants' arguments.
Williams v. American Cyanamid, 1996 WL 115934 (Feb. 15, to be
published in Fed. Rules Dec.). A.S.L.
Connecticut Appeals Court Rules Trial Court Must Explain Why It
Dismissed Case Involving False-Positive HIV Test
The Appellate Court of Connecticut unanimously ruled Feb. 27 that
plaintiffs were entitled to an explanation from the Superior Court
as to why it dismissed their action against one of the defendants
in a claim for damages as a result of a false HIV diagnosis. Doe
v. Bridgeport Hospital, 40 Conn. App. 429, 1996 WL 80069. Ruling
on the motion for summary judgment by defendant Fred Braun, the
trial court merely incorporated by reference the factual assertions
and legal arguments of the defendant's motion papers. Plaintiffs
moved for the trial court to articulate it reasoning, but the trial
court denied the motion. The appellate court found that under
Connecticut Practice Book sec. 4051, the losing party on a summary
judgment is entitled to an explanation by the court of the factual
findings and legal conclusions on which it based its decision.
Otherwise, an appellate court would have to speculate at which
facts and arguments in the defendant's papers were relied upon by
the trial court. "Because an ads From Sexual Partners
A PWA who pleaded guilty to an auto theft charge was ordered as a
condition of probation to obtain written informed consent from
anyone with whom he has sex. According to an article in the
Houston Chronicle, March 9, Texas District Judge Louis Gohmert, in
Tyler, Texas, sentenced Thomas Paul McDevitt to five years
probation, condition on McDevitt refraining from having sex with
any partner who does not sign the following statement: "Thomas Paul
McDevitt has advised me that he-she has been diagnosed as positive
for the HIV virus in his-her body and may be symptomatic for the
disease of acquired immune deficiency syndrome." The article did
not explain why the judge used the term "he-she" in the consent
form he devised for McDevitt's use. A.S.L.
Jury Awards Over $1 Million Damages to PWA for Abuse in Prison
In a verdict announced March 1, a federal jury in Kentucky awarded
$1,180,000 damages to a man for mistreatment he endured during an
overnight stay in the Jefferson County Correctional Facility. Sosa
v. Jefferson County, No. C-95-229 (W.D.Ky.). See 11 AIDS Policy &
Law No. 5, p. 1 (March 22, 1996). The plaintiff was arrested for
public drunkenness and taken to the county jail. He told the
police officer that he had AIDS, which the officer apparently told
the jail staff. Sosa claims he was ridiculed and taunted, kicked,
placed in a cell without a toilet for three hours during which,
suffering from diarrhea and severe cramps, he soiled himself and
repeatedly cried out for help. The jury levied both compensatory
and punitive damages against the county and the individual jail
guards. A.S.L.
AIDS Law & Society Notes
The U.S. Senate, by unanimous voice vote, amended the pending 1996
budget resolution to include a provision repealing the requirement
that all HIV+ military personnel be separated within 6 months,
which had recently been enacted as part of the Defense
appropriations bill. However, the discharge provision's key
proponent, Rep. Robert Dornan (R.-Cal.) vowed to defeat any repeal
effort in the House. Moreover, the bill to which the amendment was
attached may face difficulties in the House, due to Senate action
restoring billions of dollars for health and education measures
opposed by the majority party in the House.
The California Medical Association has abandoned its year-old
policy of support for mandatory reporting of positive HIV test
results. Adopting a new policy statement at its annual meeting in
Anaheim, California, the Association acknowledged that mandatory
reporting could undermine public health efforts by deterring
patients from opting for voluntary testing. Twenty-five states now
require confidential reporting of the names of HIV-positive
individuals to public health authorities. California and New York,
the states with the largest number of PWAs, do not mandate such
reporting until an AIDS diagnosis is confirmed. Los Angeles Times,
March 6. A.S.L.
PUBLICATIONS NOTED & ANNOUNCEMENTS
ANNOUNCEMENTS
The 3rd Annual Conference on Domestic Partner Benefits will be held
October 17-18 at the University of Illinois at Chicago. (Prior
conferences were hosted by the City University of New York.) For
full details on registration and schedule of events (and to submit
proposals for inclusion on the program), write to Third Annual DPB
Conference, University of Illinois at Chicago, OBLGC (M/C 369),
1007 W. Harrison, BSB 4078, Chicago, IL 60607-7140, or send an e-
mail message requesting information to oglbc-2@uic.edu.
LESBIAN & GAY & RELATED LEGAL ISSUES:
Arkes, Hadley, Questions of Principle, Not Predictions: A Reply to
Macedo, 84 Georgetown L.J. 321 (Dec. 1995) (see Macedo article,
below).
Calleros, Charles R., Paternalism, Counterspeech, and Campus Hate-
Speech Codes: A Reply to Delgado and Yun, 27 Arizona St. L. J. 1249
(Winter 1995) (See Delgado & Yun, below).
Colker, Ruth, Whores, Fags, Dumb-Ass Women, Surly Blacks, and
Competent Heterosexual White Men: The Sexual and Racial Morality
Underlying Anti-Discrimination Doctrine, 7 Yale J. L. & Feminism
195 (1995) (argument that concepts developed in sexual harassment
law have been used to bias anti-discrimination law against racial
and sexual minorities; chapter from forthcoming book, HYBRID:
Bisexuals, Multiracials and Other Misfits Under American Law, NYU
Press).
Delgado, Richard, and Jean Stefancic, Apologize and Move On?:
Finding a Remedy for Pornography, Insult, and Hate Speech, 67 U.
Colo. L. Rev. 93 (1996).
Delgado, Richard, and David Yun, "The Speech We Hate": First
Amendment Totalism, the ACLU, and the Principle of Dialogic
Politics, 27 Arizona St. L.J. 1281 (Winter 1995).
Dripps, Donald A., Bowers v. Hardwick and the Law of Standing:
Noncases Make Bad Law, 44 Emory L.J. 1417 (Fall 1995) (argues that
there was no justiciable case before the Court in Hardwick, thus
limiting its precedential significance - fascinating!!).
Feliu, Alfred G., and Elizabeth A. Fealy, The Role of "Sex" in
Same-Sex Harassment Claims, 21 Emp. Rel. L.J. No. 4, 39 (Spring
1996).
George, Robert P., and Gerard V. Bradley, Marriage and the Liberal
Imagination, 84 Georgetown L.J. 301 (Dec. 1995).
Goodman, Emily Jane, Courts Redefine "Family" in the Context of
Residential Tenants' Succession Rights, New York Law Journal,
3/11/96, p. S1.
Grose, Carolyn, Same-Sex Sexual Harassment: Subverting the
Heterosexist Paradigm of Title VII, 7 Yale J. L. & Feminism 375
(1995).
Guzman, Kathleen, About Outing: Public Discourse, Private Lives, 73
Wash. U. L. Q. 1531 (Winter 1995).
Horwitz, Andrew, Sexual Psychopath Legislation: Is There Anywhere
to Go But Backwards?, 57 U. Pitt. L. Rev. 35 (Fall 1995).
Langston, Lundy, Political and Social Construction of Families
Through Pedagogy in Family Law Classrooms, 73 Denver U. L. Rev. 179
(1995) (shows how standard family law texts bias the study of
family law toward traditional family models, and suggests
alternative approaches).
Levesque, Roger J.R., Regulating the Private Relations of Adults
With Mental Disabilities: Old Laws, New Policies, Hollow Hopes, 14
Behavioral Sciences & the Law 83 (Winter 1996).
Macedo, Stephen, Homosexuality and the Conservative Mind, 84
Georgetown L.J. 261 (Dec. 1995)(with responsive articles by George
& Bradley, Arkes, see above, and a Reply to Critics by Macedo).
Ronner, Amy D., Bottoms v. Bottoms: The Lesbian Mother and the
Judicial Perpetuation of Damaging Stereotypes, 7 Yale J. L. &
Feminism 341 (1995).
Singh, Divya, Discrimination Against Lesbians in Family Law, 11 S.
African J. Hum. Rts. 571 (1995).
Wintemute, Robert, Discrimination Against Same-Sex Couples:
Sections 15(1) and 1 of the Charter. Egan v. Canada, 74 Canadian
Bar. Rev. 682 (Dec. 1995).
Wolfson, Evan, Why We Should fight for the Freedom to Marry: The
Challenges and Opportunities that Will Follow a Win in Hawaii, 1 J.
Gay, Lesbian, & Bisexual Identity 79 (1996).
Student Notes & Comments:
Jackson, Jessica, Colorado's Lifestyle Discrimination Statute: A
Vast and Muddled Expansion of Traditional Employment Law, 67 U.
Colo. L. Rev. 143 (1996).
Murphy, Nancy E., Queer Justice: Equal Protection for Victims of
Same-Sex Domestic Violence, 30 Valparaiso U. L. Rev. 335 (Fall
1995).
Burnett, William J., Wisconsin v. Mitchell: First Amendment Fast-
Food Style, 4 Temple Pol. & Civ. Rts. L. Rev. 379 (Spring 1995).
Plane, Daniel R., Don't Mess With "Don't Ask, Don't Tell", 79
Marquette L. Rev. 377 (Fall 1995).
Rowland, Kristin R., Amorphous Employment Discrimination Protection
for Transsexuals: Doe v. Boeing, 4 Temple Pol. & Civ. Rts. L. Rev.
361 (Spring 1995).
Yount, Alan N., R.N., Don't Ask, Don't Tell: The Same Old Policy in
a New Uniform?, 12 J. Contemp. Health L. & Pol. 215 (Fall 1995).
Specially Noted:
Soon to arrive in bookstores: The Case for Same-Sex Marriage: From
Sexual Liberty to Civilized Commitment, by Prof. William Eskridge
of Georgetown University Law Centre, published by The Free Press.
This extended argument in favor of legal recognition of same-sex
marriage stems from the author's representation of plaintiffs in
litigation in the District of Columbia in an unsuccessful attempt
to gain a court order to grant them a marriage license. This book
will provide much useful information for those around the country
who are engaged in the public policy debates stemming from the
Hawaii lawsuit.
A recent publication of special interest is Legal Inversions:
Lesbian, Gay Men, and the Politics of Law, edited by Didi Herman
and Carl Stychin (Temple University Press, 1995) [ISBN 1-56639-376
(cloth), ISBN 1-56639-377-9 (paper)]. This anthology combines new
essays with reprints of some previously published law review
articles, and brings together United States, Canadian, British, and
Irish perspectives on the problems of lesbian/gay law and politics.
This book would be a useful resource for courses in lesbian and gay
studies and sexuality and the law, in addition to providing much
thought-provoking reading outside the classroom context. * * * A
forthcoming book to watch for is Sexual Orientation and Canadian
Law: An Assessment of the Law Affecting Lesbian and Gay Persons, by
John Yogis, Randall Duplak, and J. Royden Trainor (Toronto: Emond
Montgomery Publications, 1996; ISBN 0-920722-76-8). The authors
are gay lawyers based in Halifax.
AIDS & RELATED LEGAL ISSUES:
Bayer, Ronald, AIDS Prevent vs. Cultural Sensitivity, 6 Responsive
Community No. 1, 20 (Winter 1995/96).
Blanck, Peter David, Empirical Study of the Americans With
Disabilities Act: Employment Issues from 1990 to 1994, 14
Behavioral Sciences & the Law 5 (Winter 1996).
Burris, Scott, Dental Discrimination Against the HIV-Infected:
Empirical Data, Law and Public Policy, 13 Yale J. Reg. 1 (Winter
1996).
Burris, Scott, Human Immunodeficiency Virus-Infected Health Care
Workers, 5 Arch. Fam. Med. 102 (Feb. 1996).
Goldfein, Ronda B., and Catharine Hanssens, Protecting HIV-Positive
Workers: Whose ADA Is It Anyway?, 32 Trial No. 2, 26 (Feb.
1996)(exclusions of HIV-related coverage in employment-related
health plans).
Loue, Sana, Peter Lurie & Linda S. Lloyd, Ethical Issues Raised by
Needle Exchange Programs, 23 J. L. Med. & Ethics 382 (Winter 1995).
McIntosh, Phillip L., When the Surgeon Has HIV: What to Tell
Patients About the Risk of Exposure and the Risk of Transmission,
44 U. Kans. L. Rev. 315 (February 1996).
Parmet, Wendy E., Panel Comment: Legislating Privacy: The HIV
Experience, 23 J. L. Med. & Ethics 371 (Winter 1995).
Phelan, Gary, Reasonable Accommodation: Linchpin of ADA Liability,
32 Trial No. 2, 40 (Feb. 1996).
Specially Noted:
In its April 8 issue, The Nation reports on the special problem of
AIDS in India in an article titled "India's Shame: Sexual Slavery
and Political Corruption are Leading to an AIDS Catastrophe," by
Robert I. Friedman. Friedman documents how governmental neglect of
the rapidly spreading HIV epidemic is leading to a major disaster.
Editor's Note:
All points of view expressed in Lesbian/Gay Law Notes are those of
identified writers, and are not official positions of the Lesbian
and Gay Law Association of Greater New York. All comments in
Publications Noted are attributable to the Editor. Correspondence
pertinent to issues covered in Law Notes is welcome and will be
published subject to editing. Please address correspondence to the
Editor or send by e-mail. A.S.L.